
[Federal Register Volume 82, Number 113 (Wednesday, June 14, 2017)]
[Rules and Regulations]
[Pages 27133-27144]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-12340]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 68

[EPA-HQ-OEM-2015-0725; FRL-9963-55-OLEM]
RIN 2050-AG91


Accidental Release Prevention Requirements: Risk Management 
Programs Under the Clean Air Act; Further Delay of Effective Date

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule; delay of effective date.

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SUMMARY: The Environmental Protection Agency (EPA) is delaying the 
effective date of the Risk Management Program Amendments for an 
additional 20 months, to allow EPA to conduct a reconsideration 
proceeding and to consider other issues that may benefit from 
additional comment. The new effective date of the rule is February 19, 
2019. The Risk Management Program Amendments were published in the 
Federal Register on January 13, 2017. On January 26, 2017 and on March 
16, 2017, EPA published two documents in the Federal Register that 
delayed the effective date of the amendments until June 19, 2017. The 
EPA proposed in an April 3, 2017 Federal Register action to further 
delay the effective date until February 19, 2019 and held a public 
hearing on April 19, 2017. This action allows the Agency time to 
consider petitions for reconsideration of the Risk Management Program 
Amendments and take further regulatory action, as appropriate, which 
could include proposing and finalizing a rule to revise or rescind 
these amendments.

DATES: The effective date of the rule amending 40 CFR part 68 published 
at 82 FR 4594 (January 13, 2017), as delayed at 82 FR 4594 (January 26, 
2017) and 82 FR 13968 (March 16, 2017), is further delayed until 
February 19, 2019.

ADDRESSES: The EPA has established a docket for the rule amending 40 
CFR part 68 under Docket ID No. EPA-HQ-OEM-2015-0725. All documents in 
the docket are listed on the https://www.regulations.gov Web site. 
Although listed in the index, some information is not publicly 
available, e.g., Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. Certain other 
material, such as copyrighted material, is not placed on the Internet 
and will be publicly available only in hard copy form. Publicly 
available docket materials are available electronically through https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: James Belke, United States 
Environmental Protection Agency, Office of Land and Emergency 
Management, 1200 Pennsylvania Ave. NW., (Mail Code 5104A), Washington, 
DC 20460; telephone number: (202) 564-8023; email address: 
belke.jim@epa.gov, or: Kathy Franklin, United States Environmental 
Protection Agency, Office of Land and Emergency Management, 1200 
Pennsylvania Ave. NW., (Mail Code 5104A), Washington, DC 20460; 
telephone number: (202) 564-7987; email address: 
franklin.kathy@epa.gov.
    Electronic copies of this document and related news releases are 
available on EPA's Web site at https://www.epa.gov/rmp. Copies of this 
final rule are also available at https://www.regulations.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

    This final rule applies to those facilities, referred to as 
``stationary sources'' under the Clean Air Act (CAA), that are subject 
to the chemical accident prevention requirements at 40 CFR part 68. 
This includes stationary sources holding more than a threshold quantity 
(TQ) of a regulated substance in a process. Table 5 provides industrial 
sectors and the associated NAICS codes for entities potentially 
affected by this action. The Agency's goal is to provide a guide for 
readers to consider regarding entities that potentially could be 
affected by this action. However, this action may affect other entities 
not listed in this table. If you have questions regarding the 
applicability of this action to a particular entity, consult the 
person(s) listed in the introductory section of this action under the 
heading entitled FOR FURTHER INFORMATION CONTACT.

   Table 5--Industrial Sectors and Associated NAICS Codes for Entities
                   Potentially Affected by This Action
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              Sector                             NAICS code
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Administration of Environmental    924.
 Quality Programs.
Agricultural Chemical
 Distributors:

[[Page 27134]]

 
    Crop Production..............  111.
    Animal Production and          112.
     Aquaculture.
    Support Activities for         115.
     Agriculture and Forestry
     Farm.
Supplies Merchant Wholesalers....  42,491.
Chemical Manufacturing...........  325.
Chemical and Allied Products       4,246.
 Merchant Wholesalers.
Food Manufacturing...............  311.
Beverage Manufacturing...........  3121.
Oil and Gas Extraction...........  211.
Other............................  44, 45, 48, 54, 56, 61, 72.
Other manufacturing..............  313, 326, 327, 33.
Other Wholesale:
    Merchant Wholesalers, Durable  423.
     Goods.
    Merchant Wholesalers,          424.
     Nondurable Goods.
Paper Manufacturing..............  322.
Petroleum and Coal Products        324.
 Manufacturing.
Petroleum and Petroleum Products   4,247.
 Merchant Wholesalers.
Utilities........................  221.
Warehousing and Storage..........  493.
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B. How do I obtain a copy of this document and other related 
information?

    This final action and pertinent documents are located in the docket 
(see Addresses section). In addition to being available in the docket, 
an electronic copy of this document and the response to comments 
document will also be available at https://www.epa.gov/rmp/final-amendments-risk-management-program-rmp-rule.

C. Judicial Review

    Under CAA section 307(b)(1), judicial review of this final rule is 
available only by filing a petition for review in the U.S. Court of 
Appeals for the District of Columbia Circuit (the Court) by August 14, 
2017. Under CAA section 307(d)(7)(B), only an objection to this final 
rule that was raised with reasonable specificity during the period for 
public comment can be raised during judicial review.

II. Background

    On January 13, 2017, the EPA issued a final rule amending 40 CFR 
part 68, the chemical accident prevention provisions under section 
112(r)(7) of the CAA (42 U.S.C. 7412(r)). The amendments addressed 
various aspects of risk management programs, including prevention 
programs at stationary sources, emergency response preparedness 
requirements, information availability, and various other changes to 
streamline, clarify, and otherwise technically correct the underlying 
rules. Collectively, this rulemaking is known as the ``Risk Management 
Program Amendments.'' For further information on the Risk Management 
Program Amendments, see 82 FR 4594 (January 13, 2017).
    On January 26, 2017, the EPA published a final rule delaying the 
effective date of the Risk Management Program Amendments from March 14, 
2017, to March 21, 2017, see 82 FR 8499. This revision to the effective 
date of the Risk Management Program Amendments was part of an EPA final 
rule implementing a memorandum dated January 20, 2017, from the 
Assistant to the President and Chief of Staff, entitled ``Regulatory 
Freeze Pending Review.'' This memorandum directed the heads of agencies 
to postpone until 60 days after the date of its issuance the effective 
date of rules that were published prior to January 20, 2017 but which 
had not yet become effective.
    In a letter dated February 28, 2017, a group known as the ``RMP 
Coalition,'' \1\ submitted a petition for reconsideration of the Risk 
Management Program Amendments (``RMP Coalition Petition'') as provided 
for in CAA section 307(d)(7)(B) (42 U.S.C. 7607(d)(7)(B)).\2\ On March 
13, 2017, the Chemical Safety Advocacy Group (``CSAG'') also submitted 
a petition for reconsideration and stay.\3\ On March 14, 2017, the EPA 
received a third petition for reconsideration and stay from the State 
of Louisiana, joined by Arizona, Arkansas, Florida, Kansas, Kentucky, 
Oklahoma, South Carolina, Texas, Wisconsin, and West Virginia. The 
petitions from CSAG and the eleven states also requested that EPA delay 
the various compliance dates of the Risk Management Program Amendments.
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    \1\ The RMP Coalition is comprised of the American Chemistry 
Council, the American Forest & Paper Association, the American Fuel 
& Petrochemical Manufacturers, the American Petroleum Institute, the 
Chamber of Commerce of the United States of America, the National 
Association of Manufacturers, and the Utility Air Regulatory Group.
    \2\ A copy of the RMP Coalition petition is included in the 
docket for this rule, Docket ID No. EPA-HQ-OEM-2015-0725.
    \3\ A copy of the CSAG petition is included in the docket for 
this rule, Docket ID No. EPA-HQ-OEM-2015-0725. CSAG members include 
companies in the refining, oil and gas, chemicals, and general 
manufacturing sectors with operations throughout the United States 
that are subject to 40 CFR part 68.
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    Under CAA section 307(d)(7)(B), the Administrator may commence a 
reconsideration proceeding if, in the Administrator's judgement, the 
petitioner raises an objection to a rule that was impracticable to 
raise during the comment period or if the grounds for the objection 
arose after the comment period but within the period for judicial 
review. In either case, the Administrator must also conclude that the 
objection is of central relevance to the outcome of the rule. The 
Administrator may stay the effective date of the rule for up to three 
months during such reconsideration.
    In a letter dated March 13, 2017, the Administrator announced the 
convening of a proceeding for reconsideration of the Risk Management 
Program Amendments (a copy of ``the Administrator's Letter'' is 
included in the docket for this rule, Docket ID No. EPA-HQ-OEM-2015-
0725).\4\ As

[[Page 27135]]

explained in the Administrator's Letter, having considered the 
objections raised in the RMP Coalition Petition, the Administrator 
determined that the criteria for reconsideration have been met for at 
least one of the objections. EPA issued a three-month (90-day) 
administrative stay of the Risk Management Program Amendments, which 
delayed the effective date of the Risk Management Program Amendments 
rule for 90 days, from March 21, 2017 until June 19, 2017 (see 82 FR 
13968, March 16, 2017). EPA will prepare a notice of proposed 
rulemaking in the near future that will provide the RMP Coalition, 
CSAG, the states, and the public an opportunity to comment on the 
issues raised in the petitions that meet the standard of CAA section 
307(d)(7)(B), as well as any other matter we believe will benefit from 
additional comment.
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    \4\ Pruitt, E. Scott. March 13, 2017. Letter to Justin Savage of 
Hogan Lovells Regarding Convening a Proceeding for Reconsideration 
of the Final Rule Entitled ``Accidental Release Prevention 
Requirements: Risk Management Programs Under the Clean Air Act,'' 
published on January 13, 2017, 82 FR 4594. Office of the 
Administrator, U.S. Environmental Protection Agency, Washington, DC.
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III. Proposal To Delay the Effective Date

    The Administrator's authority to administratively stay the 
effectiveness of a CAA rule pending reconsideration (without a notice 
and comment rulemaking) is limited to three months (see CAA section 
307(d)(7)(B)) EPA believed that three months was insufficient to 
complete the necessary steps in the reconsideration process for the 
Risk Management Program Amendments and to consider other issues that 
may benefit from additional comment.\5\ Since we expect to take comment 
on a broad range of legal and policy issues as part of the Risk 
Management Program Amendments reconsideration, on April 3, 2017 (82 FR 
16146), we proposed to further delay the effective date of the Risk 
Management Program Amendments to February 19, 2019.
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    \5\ See the proposed rule notice published April 3, 2017, 82 FR 
at 16148-16149.
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    The statutory authority for this action is provided by section 
307(d) of the CAA, as amended (42 U.S.C. 7607(d)), which generally 
allows the EPA to set effective dates as appropriate unless other 
provisions of the CAA control, and section 112(r)(7) of the CAA (see 
section IV.A below).

IV. Summary of Public Comments Received

    EPA received a total of 54,117 public comments on the proposed 
rulemaking. Several public comments were the result of various mass 
mail campaigns and contained numerous copies of letters or petition 
signatures. Approximately 54,000 letters and signatures were contained 
in these several comments. The remaining comments include 108 
submissions with unique content (including representative copies of 
form letter campaigns and joint submissions), and nine duplicate 
submissions. EPA also held a public hearing on April 19, 2017 where EPA 
received five written comments and 28 members of the public provided 
verbal comments (three of the speakers later submitted their testimony 
as written comments). Comments received during the public hearing are 
included in the 107 submissions with unique content. A transcript of 
the hearing testimony is available as a support document in the docket 
EPA-HQ-OEM-2015-0725 for this rulemaking. A summary of public comments 
and EPA's response to the comments can be found in the Response to 
Comments document, also available in the docket. \6\
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    \6\ June 2017. EPA. Response to Comments on the 2017 Proposed 
Rule Further Delaying the Effective Date of EPA's Risk Management 
Program Amendments (April 3, 2017; 82 FR 16146). This document is 
available in the docket for this rulemaking.
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A. Comments Regarding EPA's Legal Authority To Delay the Effective Date

    In the proposed rulemaking, EPA noted that under CAA section 
307(d), the Agency may set effective dates as appropriate through 
notice and comment rulemaking unless another provision of the CAA 
controls. In the past, EPA has used this authority in conjunction with 
the reconsideration process when the administrative stay period of 
three months, which the Administrator may invoke without notice and 
comment, would be insufficient to complete the necessary process for 
reconsideration.
    Several industry trade associations agreed that EPA had authority 
under CAA section 307(d) to conduct a notice and comment rulemaking 
delaying the effective date for this rulemaking. Some noted that, 
unlike other CAA provisions, there are no provisions in CAA section 
112(r)(7) requiring a specific, earlier effective date. Some pointed 
out that, in contrast to several other CAA provisions (see, e.g., CAA 
section 112(e)(1), CAA section 112(i)(3)(A), and CAA section 
112(j)(5)), CAA section 112(r)(7)(A) gives the Administrator the 
flexibility to make a rule effective with no specific outside date 
beyond that which ``assur[es] compliance as expeditiously as 
practicable.'' In light of EPA's commitment to take further regulatory 
action in the near future, with the potential for a broad range of rule 
revisions (82 FR 16148 through 16149, April 3, 2017), and the 
substantial resources required to prepare for compliance mentioned in 
the final Risk Management Program Amendments (82 FR 4676, January 13, 
2017), these commenters agreed that the 20-month delay in the effective 
date would be as expeditiously as practicable. Several of these 
commenters also identified 5 U.S.C. 705 in the Administrative Procedure 
Act as a potential vehicle for postponing the effective date 
indefinitely in connection with the pending litigation.
    Other commenters contested EPA's authority to delay the effective 
date as proposed. A group of advocacy organizations, as well as a legal 
institute affiliated with a law school, argued that the 90-day stay 
provision in CAA section 307(d)(7)(B) is the maximum period that a rule 
can be stayed or have its effectiveness delayed in connection with a 
reconsideration. Noting that, except for the 90-day stay provision, the 
subparagraph provides that ``reconsideration shall not postpone the 
effectiveness of the rule,'' one commenter contends no additional 
exceptions can be implied. The commenter supports its position by 
citing Natural Resources Defense Council v. Reilly, 976 F.2d 36, 40-41 
(D.C. Cir. 1992). Another commenter argues that EPA had ``no excuse'' 
for not seeking comment on its first two delays of effectiveness, 
making further delay impermissible.
    More generally, commenters opposed to the proposed delay of 
effectiveness sought to rely on previous findings in the rulemaking 
record for the Risk Management Program Amendments. Noting that CAA 
section 112(r)(7)(B) provides that the regulations under that paragraph 
should provide for the prevention and detection of, and the response 
to, accidental releases ``to the greatest extent practicable,'' one 
commenter argues that a 20-month delay in effectiveness would run 
counter to the statute when EPA in the Risk Management Program 
Amendments already determined it was practicable to implement these 
regulations sooner. The commenter notes that paragraph (B) of CAA 
section 112(r)(7) requires rules to be applicable to a stationary 
source no later than three years after promulgation, so extending the 
effective date 20 months would ``inevitably result in pushing some or 
all of the compliance deadlines far beyond three years.'' The commenter 
viewed EPA as needing a more complete justification than if it were 
setting ``a new policy created on a blank slate.'' According to the 
commenter, EPA failed to justify its changed position. In the view of 
the commenter, EPA's

[[Page 27136]]

discussion of compliance dates for new provisions in the Risk 
Management Program Amendments final rule (82 FR 4675-80, January 13, 
2017) demonstrates that the 20-month delay in effectiveness does not 
comply with ``as expeditiously as practicable'' under CAA section 
112(r)(7)(A).
    Commenters also dispute the basis for convening a reconsideration 
proceeding by criticizing the BATF West finding itself and whether its 
publication two days before the close of comments made it impracticable 
to comment on the report. One commenter noted several of the parties 
requesting reconsideration in fact mentioned the BATF West finding in 
their comments. Another commenter objected to EPA not specifying what 
other issues met the reconsideration standard. More generally, 
commenters opposed to the delay of effectiveness found EPA lacked 
sufficient detail in its explanation of the basis for proposing to 
delay effectiveness of the Risk Management Program Amendments for them 
to be able to comment. Commenters further asserted that a further delay 
makes it more likely that another incident like the West Fertilizer 
explosion and other events discussed in the record, will occur. 
Commenters also expressed a concern that EPA could repeatedly delay the 
effective date based on the logic in the proposed rule.
    Response: EPA notes that CAA section 112(r)(7)(A) does not contain 
any language limiting ``as expeditiously as practicable'' to an outside 
date (e.g., ``in no case later than date X''). The volume of comments 
received on the proposed rule validates our expectation that there will 
be a high level of interest in the broad range of issues we expect to 
take comment on. For example, in this rulemaking, several commenters 
have criticized the methodology of the BATF West finding and raised 
substantive concerns about various rule provisions. We have 
consistently stated that, beyond those issues that meet the CAA section 
307(d)(7)(B) standard for reconsideration, we intend to raise other 
matters that we believe would benefit from additional comment (see, the 
Administrator's Letter).\7\ Many of the decisions underlying the Risk 
Management Program Amendments are policy preferences based on weighing 
factors in the record that could be rationally assessed in different 
ways. We continue to believe that evaluating these issues will be 
difficult and time consuming. A delay of effectiveness will allow EPA 
time for a comprehensive review of objections to the Risk Management 
Program Amendments rule without imposing the rule's substantial 
compliance and implementation resource burden when the outcome of the 
review is pending.
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    \7\ Pruitt, E. Scott. March 13, 2017. Letter to Justin Savage of 
Hogan Lovells Regarding Convening a Proceeding for Reconsideration 
of the Final Rule Entitled ``Accidental Release Prevention 
Requirements: Risk Management Programs Under the Clean Air Act,'' 
published on January 13, 2017, 82 FR 4594. Office of the 
Administrator, US Environmental Protection Agency, Washington, DC.
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    A delay of 20 months is a reasonable length of time to engage in 
the process of revisiting issues in the underlying Risk Management 
Program Amendments. Contrary to some commenters assertions (and 
contrary to the urging of those commenters who asked that we invoke the 
Administrative Procedure Act (APA) section 705), we did not propose and 
are not finalizing an indefinite delay of effectiveness. During this 
period, the pre-Amendments 40 CFR part 68 rules will remain in effect. 
As we noted when we proposed and finalized the Risk Management Program 
Amendments, ``[t]he [Risk Management Program] regulations have been 
effective in preventing and mitigating chemical accidents in the United 
States'' (see 82 FR 4595, January 13, 2017). We discuss additional 
bases for the delay of effectiveness for 20 months in section V of the 
preamble. For all of these reasons, we conclude that the delay of 
effectiveness for 20 months is as expeditious as practicable for 
allowing the rule to go into effect.
    We disagree with the view that the three month stay provision in 
CAA section 307(d)(7)(B) prohibits the use of rulemaking to further 
delay the effectiveness of rules that are not in effect. As an initial 
matter, were no reconsideration involved, a rule with a future 
effective date could have its effective date delayed simply by a timely 
rulemaking amending its effective date before the original date. Cf. 
NRDC v. EPA, 683 F.2d 752, 764 (3d Cir. 1982) (discussing application 
of rulemaking procedures to action to postpone effective date of rule); 
NRDC v. Abraham, 355 F.3d 179, 203 (2d Cir. 2004) (discussing amendment 
of effective date of rule through notice-and-comment process). While 
one commenter criticizes the initial delay of effectiveness for relying 
on the good cause exception (arguing that, in lieu of the initial good 
cause delay, we should have used a notice and comment procedure to 
delay the effective date), and the subsequent 90-day stay for 
continuing that delay, neither of those actions were challenged. There 
is no reasonable dispute that the Risk Management Program Amendments 
are not yet in effect. EPA has explained in both the proposed rule and 
in the Administrator's Letter of March 13, 2017,\8\ that part of its 
purpose in proposing to delay the effective date 20 months is to not 
only to conduct a reconsideration on the issues identified in that 
letter but also to solicit comment on any other matter that will 
benefit from additional comment. The interpretation of CAA section 
307(d)(7)(B) urged by the commenters would say that EPA's ability to 
use a notice and comment procedure to delay the effective date for 
these matters that EPA seeks to solicit additional comment on is 
negated when there is a reconsideration ongoing as well.
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    \8\ Pruitt, E. Scott. March 13, 2017. Letter to Justin Savage of 
Hogan Lovells Regarding Convening a Proceeding for Reconsideration 
of the Final Rule Entitled ``Accidental Release Prevention 
Requirements: Risk Management Programs Under the Clean Air Act,'' 
published on January 13, 2017, 82 FR 4594. Office of the 
Administrator, US Environmental Protection Agency, Washington, DC.
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    We also disagree with the commenters' view that the phrase 
``reconsideration shall not postpone the effective date of the rule'' 
is meant to prohibit using a notice and comment procedure or any means 
other than the three month stay in CAA section 307(d)(7)(B) to delay a 
rule that is not in effect. In quoting the statute, the comment omits 
the word ``[s]uch.'' In context, ``such reconsideration'' follows a 
discussion of the process for convening reconsideration and precedes 
the three month stay provision. A natural reading of the language is 
that the act of convening reconsideration does not, by itself, stay a 
rule but that the Administrator, at his discretion, may issue a stay if 
he has convened a proceeding. The three-month limitation on stays 
issued without rulemaking under CAA section 307(d)(7)(B) does not limit 
the availability or length of stays issued through other mechanisms. 
Furthermore, CAA section 307(d) expressly contemplates the ``revision'' 
of rules to which it applies. See CAA section 307(d)(1); see also CAA 
section 112(r)(7)(E) (regulations under CAA section 112(r) ``shall for 
purposes of sections 113 . . . and 307 . . . be treated as a standard 
in effect under subsection (d) of [section 112]''). EPA is issuing this 
rule as a revision of the Risk Management Program Amendments.
    The case of Natural Resources Defense Council v. Reilly, 976 F.2d 
36 (D.C. Cir. 1992) (NRDC) does not prohibit EPA from using rulemaking 
procedures under CAA section 307(d) to modify and delay the effective 
date of the Risk Management Program Amendments. In that case, EPA had 
made the finding that radionuclides

[[Page 27137]]

were hazardous air pollutants under the pre-1990 CAA. That finding, in 
turn, triggered a series of mandatory duties under the CAA that 
required promulgation of emission standards. EPA did so after several 
court orders but, under a series of rules under CAA section 301 and the 
pre-1990 CAA section 112, continuously stayed the effectiveness of 
those rules. The 1990 Amendments added special provisions for 
radionuclides, saving the former rules, delaying the effectiveness of a 
category of rules impacting medical facilities regulated by the Nuclear 
Regulatory Commission (NRC), and establishing specific procedures for 
exempting NRC-licensed sources. See CAA section 112(d)(9), CAA section 
112(q). EPA conducted a rulemaking under CAA section 112(d)(9) but 
lacked sufficient data to promulgate an exemption for most NRC-licensed 
facilities. Nevertheless, EPA promulgated a stay of effectiveness of 
the radionuclide rules, using CAA section 301, while it gathered the 
necessary information to establish exemptions. (See NRDC at 38-39.) EPA 
characterized its rule as a transitional rule necessary to implement 
the intent of the 1990 Amendments. Id. at 40.
    The NRDC court observed that the pre-1990 CAA had a highly 
circumscribed schedule for promulgating hazardous air pollutant rules. 
NRDC at 41. Recognizing that its past precedents did not allow the 
grant of general rulemaking authority to override specific provisions 
of the CAA, the court held that ``[i]n the face of such a clear 
statutory command, we cannot conclude that section 301 provided the EPA 
with the authority to stay regulations that were subject to the 
deadlines established by [former] section 112(b).'' Id.
    In contrast to the ``clear statutory command'' to promulgate rules 
for radionuclides once they were found to be hazardous air pollutants, 
CAA section 112(r) contains no similar mandate to promulgate the Risk 
Management Program Amendments. There is no dispute that EPA discharged 
its mandatory duty under CAA section 112(r)(7)(B) to promulgate 
``reasonable regulations'' when it promulgated the Risk Management 
Program rule in 1996. These rules have been in effect and stationary 
sources that have present a threshold quantity of a regulated substance 
must comply with 40 CFR part 68 as in effect. The Risk Management 
Program Amendments were not promulgated to comply with a court order 
enforcing a mandatory duty. In contrast to the specific deadlines in 
the pre-1990 CAA for hazardous air pollutant regulation and the 
detailed structure in CAA section 112(d)(9) and CAA section 112(q) for 
addressing radionuclides under the amended CAA, CAA section 
112(r)(7)(A) provides the Administrator substantial discretion 
regarding the setting of an effective date. The statutory framework for 
a discretionary rule under CAA section 112(r)(7) differs greatly from 
the ``highly circumscribed schedule'' analyzed by the NRDC court. 
Absent an otherwise controlling provision of the CAA, CAA section 
307(d) allows EPA to set a reasonable effective date.
    We view the provision in CAA section 112(r)(7)(B) regarding when 
regulations shall be ``applicable'' to a stationary source to not 
prohibit the delay of effectiveness we promulgate in this rule. First, 
we note that February 2019 is before January 2020 (three years after 
the January 2017 promulgation), so even assuming the provision in 
question requires compliance by three years after promulgation of the 
Risk Management Program Amendments,\9\ it is speculative to say that it 
is ``inevitable'' that some compliance dates will be ``pushed off far 
beyond three years'' from promulgation. Even if the commenter's 
intuition is correct, the argument is premature. A challenge to 
compliance dates after January 2020 should be brought in litigation 
over a rule that establishes such a date. Second, the appropriate rule 
to challenge compliance dates set in the Risk Management Program 
Amendments would be the underlying rule (i.e., the Risk Management 
Program Amendments rule promulgated on January 13, 2017) that 
established compliance dates. This rule does not impact compliance 
dates except for those dates that would be triggered prior to February 
2019. If EPA proposes amending compliance dates beyond January 13, 
2020, then this issue will need to be addressed.
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    \9\ EPA does not concede that the provision requires all 
compliance deadlines to be set three years from the date of any rule 
under CAA section 112(r)(7)(B)(i). This provision more naturally is 
read to refer to the earliest possible compliance date for a newly-
regulated stationary source. This reading is confirmed by the rest 
of the sentence, which refers to when a stationary source with a 
newly-listed substance must comply with CAA section 112(r)(7)(B) 
regulations. The Risk Management Program Amendments itself describes 
the rationale for when already-regulated sources must comply with 
the Risk Management Program Amendments.
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    While CAA section 112(r)(7)(B) contains a requirement that EPA's 
regulations ``provide, to the greatest extent practicable,'' for 
prevention, detection, and response to accidental releases, that 
subparagraph places this requirement in the context of a mandate for 
the regulations to be ``reasonable.'' The phrase ``to the greatest 
extent practicable'' does not prohibit weighing the difficulties of 
compliance planning and other implementation issues.
    This action itself is not the convening of reconsideration, 
therefore, the questions of whether the arson finding by the BATF was 
proper are outside the scope of this rule. Even if the comment were 
within the scope of this rulemaking, the mention of the BATF finding in 
a few scattered comments does not mean that it was practicable for the 
public generally and the hundreds of commenters to meaningfully address 
the significance of the finding for a rule with multiple issues and 
hundreds of supporting documents. EPA is not taking action under APA 
section 705 at this time.

B. Comments Supporting a Delay of the Effective Date

    Many commenters supported EPA's proposal to delay the effective 
date of the final rule to February 19, 2019. These commenters included 
industry associations, regulated facilities, state government agencies, 
and others. These commenters gave various reasons for delaying the 
final rule's effective date.
1. Comments Arguing That EPA Finalized Provisions That Were Not 
Discussed in the Proposed Rule
    Several commenters indicated the final rule included changes on 
which the public was never offered an opportunity to comment as 
required by the CAA. These commenters highlighted a new provision in 
the final rule requiring regulated facilities to disclose any 
information relevant to emergency planning to local emergency planners, 
and a new final rule trigger for third-party audits allowing an 
implementing agency to require such an audit due to ``conditions at the 
stationary source that could lead to the release of a regulated 
substance'' as issues that warrant reconsideration and delaying the 
effective date of the final rule. These commenters argued that the 
public was deprived of effective notice and opportunity to comment on 
the new provisions.
    Response: EPA agrees that the final rule included some rule 
provisions that may have lacked notice and would benefit from 
additional comment and response.
2. Comments Regarding the Arson Finding for the West Fertilizer 
Explosion
    Many commenters indicated that the finding by the Bureau of 
Alcohol, Tobacco, and Firearms (BATF) that the West Fertilizer 
explosion was caused by

[[Page 27138]]

arson undermined the basis for the rule and that this necessitates 
delaying the final rule's effective date, in order to reconsider its 
provisions, in light of the BATF finding. Some complained the timing of 
BATF's announcement a few days before the end of the rule comment 
period precluded the development and submission of meaningful comments 
addressing this change in circumstances and its implications.
    Response: EPA agrees that the timing of the BATF finding on the 
West Fertilizer incident made it impracticable for many commenters to 
meaningfully address the significance of this finding in their comments 
on the rule. Additionally, delaying the effective date of the final 
rule to February 19, 2019, will give the Agency an opportunity to 
consider comments on the BATF finding and take further action to 
reconsider the rule, propose any necessary changes, and provide 
opportunity for public comment on any changes made.
3. Other Comments Raised
    Many commenters indicated that the effective date of the rule 
should be delayed because its information disclosure provisions create 
security risks, and these risks have not been adequately addressed by 
EPA in the final rule. Other commenters objected to other specific 
provisions of the final rule (e.g., third-party audits, safer 
technology and alternatives analysis (STAA), incident investigation 
requirements, etc.), indicating that EPA had provided no evidence that 
these provisions would produce the benefits claimed by EPA, and that 
EPA should delay the effective date of the final rule either to provide 
such evidence or remedy these deficiencies by making substantive 
changes to the rule. Numerous commenters argued that EPA failed to show 
that the benefits of the final rule outweigh its costs and made other 
flaws in the regulatory impact analysis, which the commenters contended 
were grounds for delaying the effective date of the final rule and 
reconsidering its provisions. One trade association stated that the 
Risk Management Program Amendments are not needed and that the current 
Risk Management Program has been effective in identifying and reducing 
risks and preventing offsite impacts based on EPA data showing that 
between 2004 and 2013 there has been a decrease of over 60% of all RMP-
reportable events. Another trade association believes that the 
amendments raise substantial questions of policy and significantly 
increase the regulatory burden without corresponding benefits and 
should be considered for repeal under Executive Orders 13771, 
``Reducing Regulation and Controlling Regulatory Costs'' \10\ and 
13777, ``Enforcing the Regulatory Reform Agenda.'' \11\
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    \10\ See Executive Order 13771: Reducing Regulation and 
Controlling Regulatory Costs which was signed on January 30, 2017 
and published in the Federal Register on February 3, 2017 (82 FR 
9339). Executive Order 13771 requires that any new incremental costs 
associated with new regulations shall, to the extent permitted by 
law, be offset by the elimination of existing costs associated with 
at least two prior regulations https://www.federalregister.gov/documents/2017/02/03/2017-02451/reducing-regulation-and-controlling-regulatory-costs.
    \11\ See Executive Order 13777: Enforcing the Regulatory Reform 
Agenda which was signed on February 24, 2017 and published in the 
Federal Register on March 1, 2017 (82 FR 12285). Executive Order 
13777 tasks each Federal agency with identifying regulations that 
are unnecessary, ineffective, impose costs that exceed benefits, or 
interfere with regulatory reform initiatives and policies for 
repeal, replacement, or modification https://www.federalregister.gov/documents/2017/03/01/2017-04107/enforcing-the-regulatory-reform-agenda.
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    A commenter representing a group of State agencies argued that the 
effective date should be delayed because the final rule created 
unjustified burdens on state and local emergency responders. Several 
commenters indicated that EPA did not adequately coordinate with OSHA 
during the rulemaking process, and that EPA should delay the effective 
date of and reconsider the rule in order to coordinate any amendments 
to the Risk Management Program with changes made by OSHA to its Process 
Safety Management standard.
    Some commenters also argued that the effective date should be 
delayed because EPA did not adequately address small business concerns, 
or made other procedural errors during the rulemaking process.
    Response: While it is not necessary for EPA to address the 
substance of these claims in this rulemaking, we note they represent a 
wide-ranging and complex set of policy and procedural issues. Some of 
these issues would not meet the standard for reconsideration under CAA 
section 307(d)(7)(B), but present substantial policy concerns that EPA 
may wish to address while it conducts the reconsideration process for 
issues that meet that reconsideration standard. Whether or not EPA 
agrees with commenters on the merits of these claims, the Agency 
believes the existence of such a large set of unresolved issues 
demonstrates the need for careful reconsideration and reexamination of 
the Risk Management Program Amendments. Therefore, while EPA does not 
now concede that it should make the particular regulatory changes that 
these commenters have recommended, or that the Agency made errors in 
its regulatory impact analysis or rulemaking procedures, EPA concurs 
with commenters to the extent that they argue for finalizing the 
proposed delay in the effective date of the Risk Management Program 
Amendments rule in order to conduct a reconsideration proceeding. That 
proceeding will allow EPA to address commenters' issues as appropriate.

C. Comments Opposing a Delay of the Effective Date

    Many commenters opposed EPA's proposal to further delay the 
effective date of the final rule to February 19, 2019. These commenters 
included environmental advocacy groups, other non-governmental 
organizations, private citizens, an association representing fire 
fighters, an academic institution, and others. These commenters gave 
various reasons for opposing EPA's proposal to delay the final rule's 
effective date, which are discussed individually below.
1. Comments Arguing That a Further Delay of the Rule's Effective Date 
Will Cause Harm
    Many commenters indicated that EPA should not delay the effective 
date because delaying the rule's implementation will fail to prevent or 
mitigate chemical accidents that will cause harm to workers at 
regulated facilities and members of the public in surrounding 
communities.
    Response: EPA disagrees that further delaying the final rule's 
effective date will cause such harm. EPA notes that delaying the 
effective date of the Risk Management Program Amendments rule simply 
maintains the status quo, which means that the existing RMP rule 
remains in effect. EPA also notes that compliance dates for most major 
provisions of the Risk Management Program Amendments rule were set for 
four years after the final rule's effective date, so EPA's delay of 
that effective date has no immediate effect on the implementation of 
these requirements. As EPA has previously indicated, the existing RMP 
rule has been effective in preventing and mitigating chemical 
accidents, and these protections will remain in place during EPA's 
reconsideration of the Risk Management Program Amendments.\12\
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    \12\ See 82 FR 4595, January 13, 2017.
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2. Comments Arguing That the EPA's Proposal To Further Delay the Rule's 
Effective Date Is Arbitrary and Capricious
    Three commenters claimed that EPA's rulemaking to extend the 
effective date

[[Page 27139]]

of the Risk Management Program Amendments rule to February 19, 2019 is 
arbitrary and capricious. Commenters stated several reasons that the 
proposed delay is arbitrary and capricious, including: The issues 
presented for reconsideration do not meet the statutory requirement for 
reconsideration under CAA section 307(d)(7)(B), and, even if any met 
the CAA section 307(d)(7)(B) standard, EPA lacks authority to extend a 
rule's effective date beyond 90 days pending reconsideration; EPA 
failed to explain why it is appropriate to forgo the benefits of the 
rule during the period of the stay; EPA failed to adequately justify 
its change in position; and EPA has not shown that a delay of 20 months 
assures compliance ``as expeditiously as practicable'', as required 
under CAA section 112(r)(7)(A) or provides to ``the greatest extent 
practicable'' for prevention, detection, and response, as required 
under CAA section 112(r)(7)(B). One commenter also stated that EPA 
appeared ``to pick the duration it proposes--20 months--out of a hat,'' 
and provided no explanation or justification for this timeframe.
    Response: EPA disagrees that this rulemaking is arbitrary and 
capricious. In order to conduct a rulemaking that is reasonable, and 
therefore not arbitrary and capricious, the courts have held that an 
agency must ``set forth its reasons'' for its decision and ``establish 
a rational connection between the facts found and the choice made.'' 
\13\ EPA has done so here. First, the reconsideration process that EPA 
has initiated does meet the statutory test for such a process. As EPA 
stated in the proposed rule, under CAA section 307(d)(7)(B), the 
Administrator must commence a reconsideration proceeding if, in the 
Administrator's judgement, the petitioner raises an objection to a rule 
that was impracticable to raise during the comment period or if the 
grounds for the objection arose after the comment period but within the 
period for judicial review, and the objection is of central relevance 
to the outcome of the rule.
---------------------------------------------------------------------------

    \13\ See Tourus Records, Inc. v. D.E.A., 259 F.3d 731, 736 (D.C. 
Cir. 2001).
---------------------------------------------------------------------------

    The Administrator's Letter of March 13, 2017,\14\ specified at 
least one issue--BATF's West finding--met the CAA section 307(d)(7)(B) 
standard for reconsideration. The letter does not reach conclusions on 
other issues in the RMP Coalition petition that meet this standard, but 
notes that at least some issues may have lacked notice and would 
benefit from additional comment and response. All three petitioners 
argued that the final rule included new requirements that were not 
included in the proposed rule, requirements that petitioners would have 
strongly objected to if they had been afforded an opportunity to 
comment. In particular, the petitioners cited a provision in the final 
rule requiring regulated facilities to disclose any information 
relevant to emergency planning to local emergency planners and a 
requirement to perform a third-party audit when an implementing agency 
requires such an audit due to ``conditions at the stationary source 
that could lead to the release of a regulated substance.'' Without 
conceding that these provisions lacked adequate notice, EPA recognizes 
that these provisions include core requirements for major rule 
provisions, and so are of central relevance to the outcome of the rule. 
Thus, BATF's West finding meets the criteria for reconsideration under 
CAA section 307(d)(7)(B), and it make practical sense for EPA to 
provide an opportunity for comment on these other issues in the 
reconsideration proceeding.\15\
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    \14\ Pruitt, E. Scott. March 13, 2017. Letter to Justin Savage 
of Hogan Lovells Regarding Convening a Proceeding for 
Reconsideration of the Final Rule Entitled ``Accidental Release 
Prevention Requirements: Risk Management Programs Under the Clean 
Air Act,'' published on January 13, 2017, 82 FR 4594. Office of the 
Administrator, U.S. Environmental Protection Agency, Washington, DC.
    \15\ Even if no issue met the statutory standard for when the 
Administrator must convene a proceeding for reconsideration under 
CAA section 307(d)(7)(B), the Administrator retains the discretion 
to convene a reconsideration process. See Trujillo v. Gen. Elec. 
Co., 621 F.2d 1084, 1086 (10th Cir. 1980) (``Administrative agencies 
have an inherent authority to reconsider their own decisions, since 
the power to decide in the first instance carries with it the power 
to reconsider.''); Dun & Bradstreet Corp. Found. V. U.S. Postal 
Serv., 946 F.2d 189, 193 (2d Cir. 1991) (``It is widely accepted 
that an agency may, on its own initiative, reconsider its interim or 
even its final decisions, regardless of whether the applicable 
statute and agency regulations expressly provide for such review.'')
---------------------------------------------------------------------------

    EPA also disagrees with one commenter's assertion that the lack of 
discussion in the proposed rule of the forgone benefits of the rule 
during the period of the delay of effectiveness makes the delay 
arbitrary and capricious. As an initial matter, the regulatory impact 
analysis for the Risk Management Program Amendments was unable to 
conclusively show that the benefits of the final rule exceeded its 
costs. The lack of a quantification of benefits in the final rule 
regulatory impact analysis would make a quantification of forgone 
benefits during the period of a delay speculative at best. However, as 
noted above, most provisions have a compliance date of 2021, therefore 
any benefits from compliance would not be impacted.
    In deciding whether to implement a regulation, EPA may reasonably 
consider not only its benefits, but also its costs. Petitioners have 
claimed that the final Risk Management Program Amendments' new 
provisions that were not included in the proposed rule may actually 
increase the risks and burdens to states, local communities, emergency 
responders, and regulated entities rather than fixing the problems 
identified in the proposed rule. It is completely reasonable for EPA to 
delay implementation of and reexamine the Risk Management Program 
Amendments when the Agency becomes aware of information, such as that 
provided by petitioners, that suggests one or more of these provisions 
may potentially result in harm to regulated entities and the public.
    Petitioners' claims that the new final rule provisions may cause 
harm to regulated facilities and local communities, and the speculative 
but likely minimal nature of the forgone benefits, form another 
rational basis for EPA to delay the effectiveness of the Risk 
Management Program Amendments and determine whether they remain 
consistent with the policy goals of the Agency.
    EPA also disagrees with a commenter's assertion that delaying the 
final rule's effective date by 20 months violates the requirement under 
CAA section 112(r)(7)(A) to assure compliance as expeditiously as 
practicable, or the requirement under CAA section 112(r)(7)(B) to 
promulgate reasonable regulations to the greatest extent practicable. 
EPA believes that the language of these sections of the CAA gives the 
Administrator broad authority to determine what factors are relevant to 
establishing effective dates that are practicable (unlike other 
sections of the CAA, where Congress constrained ``as practicable'' to 
include certain defined time limits). In exercising this authority, EPA 
believes effective dates must account for all relevant factors. In this 
case, delaying the effective date of the rule during the 
reconsideration proceeding is reasonable and practicable because the 
Agency does not wish to cause confusion among the regulated community 
and local responders by requiring these parties to prepare to comply 
with, or in some cases, immediately comply with, rule provisions that 
might be changed during the subsequent reconsideration. This is 
particularly true for provisions that might result in unanticipated 
harm to facilities and local communities, as petitioners have alleged 
may occur. The Agency notes that compliance with most major provisions 
in the final rule

[[Page 27140]]

would not be required until 2021, so delaying the effective date of the 
final rule would have minimal effect on the benefits derived from 
compliance with these provisions.
    Lastly, EPA disagrees that it picked the 20-month duration for the 
proposed delay in effective date ``out of a hat,'' or provided no 
explanation or justification for this timeframe. As EPA explained in 
the proposed rule (82 FR 16148 through 16149, April 3, 2017): ``As with 
some of our past reconsiderations, we expect to take comment on a broad 
range of legal and policy issues as part of the Risk Management Program 
Amendments reconsideration . . .,'' and,

    This timeframe would allow the EPA time to evaluate the 
objections raised by the various petitions for reconsideration of 
the Risk Management Program Amendments, consider other issues that 
may benefit from additional comment, and take further regulatory 
action. This schedule allows time for developing and publishing any 
notices that focus comment on specific issues to be reconsidered as 
well as other issues for which additional comment may be 
appropriate. A delay of the effective date to February 19, 2019, 
provides a sufficient opportunity for public comment on the 
reconsideration in accordance with the requirements of CAA section 
307(d), gives us an opportunity to evaluate and respond to such 
comments, and take any possible regulatory actions, which could 
include proposing and finalizing a rule to revise the Risk 
Management Program amendments, as appropriate.

    This rationale for the proposed duration of the effective date is 
neither arbitrary nor capricious.
3. Comments Arguing Inadequate Rationale Was Provided for Further Delay 
of Effective Date
    Several commenters argued that EPA did not provide a valid basis or 
reasoned explanation for its proposal to delay, for why the petitions 
should take more than three months to consider, or how the 20-month 
delay period was determined.
    Response: The three petitions for reconsideration cover numerous 
policy and legal issues with the Risk Management Program Amendments. As 
stated in the April 3, 2017 proposal (82 FR 16148 through 16149) these 
issues may be difficult and time consuming to evaluate, and given the 
expected high level of interest from stakeholders in commenting on 
these issues, we proposed a longer delay of the effective date to allow 
additional time to open these issues for review and comment. 
Additionally, in both the Administrator's Letter of March 13, 2017 \16\ 
as well as the proposed delay of effectiveness rule, EPA indicated it 
may raise other matters we believe will benefit from additional comment 
(82 FR 16148 through 16149, April 3, 2017). Resolution of issues may 
require EPA to revise the amendments through a rulemaking process, 
which would involve a developing a proposal to focus comment of 
specific issues as well as other issues for which additional comment 
may be appropriate, allowing sufficient opportunity for public comment, 
review and respond to comments, and develop any final revisions. The 
rulemaking process also must allow time for Agency, inter-agency and 
OMB review of the proposed and final rule. Based on EPA rulemaking 
experience, EPA decided that a 20-month delay was warranted. Some 
industry commenters have pointed out that without such a delay, 
regulated parties would need to expend resources to prepare for 
compliance with the Risk Management Program Amendments final rule 
provisions while further changes to the program are being contemplated.
---------------------------------------------------------------------------

    \16\ Pruitt, E. Scott. March 13, 2017. Letter to Justin Savage 
of Hogan Lovells Regarding Convening a Proceeding for 
Reconsideration of the Final Rule Entitled ``Accidental Release 
Prevention Requirements: Risk Management Programs Under the Clean 
Air Act,'' published on January 13, 2017, 82 FR 4594. Office of the 
Administrator, U.S. Environmental Protection Agency, Washington, DC.
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4. Comments Indicating That the BATF Arson Finding Should Not Affect 
the Basis of the Rule
    Many commenters indicated that the BATF finding of arson should not 
cause EPA to reconsider the final rule. These commenters indicated that 
Executive Order 13650 was not specifically based on the West Fertilizer 
event, and that EPA did not justify the Risk Management Program 
Amendments rule on that single incident, but rather that EPA indicated 
an average of approximately 150 chemical accidents have occurred each 
year, and the rule's provisions were intended to address all such 
accidents. Other commenters noted that conditions at West Fertilizer 
enabled the fire to escalate into a massive detonation, and lack of 
effective communication contributed to the needless deaths of emergency 
responders--issues that some rule amendments addressed by improving 
emergency preparedness. Some commenters also stated that the BATF 
finding was not actually based on evidence of arson, but rather relied 
on a process of elimination called ``negative corpus'' to project a 
conclusion without evidence, and therefore the BATF finding does not 
provide grounds for the petitioner's objection to the final rule.
    Response: As an initial matter, the Agency's decision to convene a 
proceeding for reconsideration was made in a separate action--the 
Administrator's Letter of March 13, 2017. The merits of that decision 
are not properly subject to collateral attack in this rule. The 
substantive impact of the BATF finding on the policy issues opened in 
the reconsideration-related proposed rule may be addressed in the 
notice and comment period for that rule. The focus of this delay of 
effectiveness rule is to provide sufficient time to conduct a 
proceeding on the complex set of issues identified by the petitions as 
well as other issues that merit additional comment.
    EPA disagrees that the BATF finding of arson as the cause of the 
West Fertilizer explosion does not provide grounds for reconsideration 
of the Risk Management Program Amendments final rule. While EPA agrees 
that the incident was not the sole justification for Executive Order 
13650, and the Agency did not solely rely on it as justification for 
the Risk Management Program Amendments, there is no question that the 
event was the proximate trigger for Executive Order 13650 \17\ and 
prominently featured in the Agency's Risk Management Program Amendments 
proposed rule.\18\ EPA believes the prominence of the incident in the 
policy decisions underlying Executive Order 13650 and the Risk 
Management Program Amendments rule makes the BATF finding regarding the 
cause of the incident of central relevance to the rule amendments. If 
the cause of the West Fertilizer explosion had been known sooner, the 
Agency may have possibly given greater consideration to potential 
security risks posed by the proposed rule amendments. All three of the 
petitions

[[Page 27141]]

for reconsideration and many of the commenters discuss potential 
security concerns with the rule's information disclosure requirements 
to LEPCs and the public. The RMP Coalition petition and some commenters 
argue that knowing that the West Fertilizer incident was an 
intentional, rather than an accidental act, would likely have resulted 
in more focus on enhanced facility security measures and justifications 
for the need for third-parties to obtain facility information, with 
protections on data use and further disclosure.
---------------------------------------------------------------------------

    \17\ See Executive Order 13650, Actions to Improve Chemical 
Safety and Security--A Shared Commitment; Report for the President, 
May, 2014, pp 1: ``The West, Texas, disaster in which a fire 
involving ammonium nitrate at a fertilizer facility resulted in an 
explosion that killed 15 people, injured many others, and caused 
widespread damage, revealed a variety of issues related to chemical 
hazard awareness, regulatory coverage, and emergency response. The 
Working Group has outlined a suite of actions to address these 
issues . . .''
    \18\ In the proposed rule, EPA referred to the West Fertilizer 
event more than 15 times. For example, see 81 FR 13640, column 1: 
``In response to catastrophic chemical facility incidents in the 
United States, including the explosion that occurred at the West 
Fertilizer facility in West, Texas, on April 17, 2013 that killed 15 
people, President Obama issued Executive Order 13650, ``Improving 
Chemical Facility Safety and Security,'' on August 1, 2013.''
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    Clearly, EPA does not desire to establish regulations that increase 
security risks. While EPA has not concluded that the final rule would 
increase such risks, the petitioner's concerns, which are echoed by 
many other commenters, require careful consideration, and cannot be 
dismissed out of hand.
    Regarding these commenters claims that the BATF relied on an 
invalid form of reasoning (i.e., ``negative corpus'') to reach its 
conclusion regarding the cause of the West Fertilizer explosion, EPA 
cannot evaluate these commenters claims without obtaining detailed 
information on the BATF investigation. The decision to reconsider 
simply acknowledges the fact that BATF made this finding, that the 
finding went to issues of central relevance to the Risk Management 
Program Amendments and that the finding was late enough in the comment 
period to make it impracticable for many commenters to meaningfully 
comment on the finding's significance for the rule. The substantive 
merits of the BATF methodology and its conclusion would be more 
appropriate to consider in a reconsideration rulemaking process 
addressing the Risk Management Program Amendments issues impacted by 
the finding. To the extent questions remain concerning the cause of the 
West Fertilizer explosion, EPA believes these argue for finalizing the 
delay of effective date of the Risk Management Program Amendments in 
order to give the Agency time to better understand the basis for BATF's 
conclusions.
    Accordingly, EPA has decided to finalize the proposed delay of the 
effective date to February 19, 2019. This delay will give the Agency an 
opportunity to reconsider the Risk Management Program Amendments rule, 
propose changes to the rule as necessary, and provide additional 
opportunity for members of the public to submit comments on the 
proposal to EPA.
5. Comments Arguing That the Petitioners' Other Claims Are Without 
Merit
    Some commenters stated that EPA and the petitioners for 
reconsideration failed to identify objections that either arose after 
the period for public comment or were impracticable to raise during 
this period, as required under CAA section 307(d)(7)(B). One of these 
commenters stated that most of the objections that were raised by 
petitioners were ``simply recycled from the comment period'' and that 
the ``remainder address issues that cannot possibly be considered ``of 
central relevance'' to the ``Chemical Disaster Rule.'' This commenter 
also indicated that several parties commented on the BATF finding 
during the public comment period for the Risk Management Program 
Amendments rulemaking, and that this demonstrated that it was not 
impracticable to raise the issue during the comment period. This 
commenter noted that EPA had responded to these comments and found that 
``it would be inappropriate to suspend the rulemaking based on outcomes 
of the incident investigation of the West Fertilizer explosion.''
    Response: EPA disagrees that petitioners have failed to identify 
one or more objections that either arose after the period for public 
comment or were impracticable to raise during that period. The decision 
to convene a proceeding for reconsideration was made in the 
Administrator's Letter of March 13, 2017.\19\ The substance of that 
decision is a separate action from this rule on the length of a delay 
of effectiveness. Petitioners, as well as numerous commenters, 
including industry trade associations, regulated facilities, state 
government agencies, and others asserted the final rule imposed 
extensive new requirements on covered facilities that were not 
contained in the proposed rule. These commenters maintained that two 
major provisions of the final rule were not contained in the proposal, 
including a new provision in the final rule requiring regulated 
facilities to disclose any information relevant to emergency planning 
to local emergency planners, and a new trigger for third-party audits. 
EPA agrees that these concerns warrant additional public comment and 
can be incorporated into the reconsideration process for the Risk 
Management Program Amendments rule.\20\
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    \19\ Pruitt, E. Scott. March 13, 2017. Letter to Justin Savage 
of Hogan Lovells Regarding Convening a Proceeding for 
Reconsideration of the Final Rule Entitled ``Accidental Release 
Prevention Requirements: Risk Management Programs Under the Clean 
Air Act,'' published on January 13, 2017, 82 FR 4594. Office of the 
Administrator, U.S. Environmental Protection Agency, Washington, DC.
    \20\ See footnote 15, above.
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    While EPA acknowledges that several commenters included the BATF 
arson finding in their comments on the Risk Management Program 
Amendments proposed rule, the Agency does not view two days (i.e., the 
amount of time between BATF's announcement of its arson finding and the 
close of the public comment period for the Risk Management Program 
Amendments proposed rule) as a sufficient time period to evaluate the 
full implications of such important new information. Several commenters 
also noted that the BATF's arson finding was announced too late for 
them to adequately consider this information within their comments to 
EPA.
    Also, when EPA stated, in responding to comments on the proposed 
Risk Management Program Amendments, that it would be inappropriate to 
suspend the rulemaking based on outcomes of the incident investigation 
of the West Fertilizer explosion, the Agency had not yet received the 
petitions that prompted its reconsideration proceeding, as well as 
comments on the proposal to delay the rule's effective date, both of 
which assert that the information disclosure provisions contained in 
the final Risk Management Program Amendments may actually increase or 
introduce new security risks to RMP facilities, emergency responders, 
and communities. EPA believes it would be remiss for the Agency to 
allow the final rule to become effective without fully evaluating this 
new information. As previously indicated, EPA does not desire to 
establish regulations that increase security risks.
    Finally, several commenters also stated that EPA added more than 
100 new documents to the rulemaking docket after the close of the 
comment period, and indicated that several of these documents were used 
by EPA to support the Agency's position on core provisions of the final 
rule, including the STAA and third-party audit provisions. These 
commenters stated that because the comment period had already closed 
when this information was added to the docket, the public was denied an 
opportunity to review and comment on the additional information. 
Without taking a position on whether these documents required 
additional comment under the rulemaking procedures of CAA section 
307(d), a benefit of reopening comment on the topics that meet the 
reconsideration standard of CAA section 307(d)(7)(B)

[[Page 27142]]

will be to allow for comment on some or all of these documents.
6. Other Comments on the Proposed Delay of the Effective Date
    While noting their opposition to many provisions of the final 
regulation, an association of state and local emergency planning 
officials recommended that EPA allow the emergency response 
coordination activities provisions of Sec.  68.93 and the emergency 
response program provisions of Sec.  68.95 (and particularly paragraph 
(c)) \21\ to go into effect immediately. This association argued that 
these two requirements are simple, direct, not burdensome, and in the 
case of Sec.  68.95(c), essentially identical to requirements contained 
in the Emergency Planning and Community Right-to-Know Act (EPCRA).
---------------------------------------------------------------------------

    \21\ Section 68.95(c) pertains to coordination of a facility's 
emergency response plan with the community emergency response plan 
and providing necessary information to local officials to develop 
and implement the community response plan.
---------------------------------------------------------------------------

    Response: EPA disagrees that the emergency response coordination 
activities provisions of Sec.  68.93 should immediately go into effect. 
These provisions contain language (i.e., ``Coordination shall include 
providing to the local emergency planning and response organizations . 
. . any other information that local emergency planning and response 
organizations identify as relevant to local emergency response 
planning'') for which two petitioners (the RMP Coalition and Chemical 
Safety Advocacy Group) specifically objected, based on their concerns 
that the rule included no limitations on the information requested to 
be disclosed or how sensitive information can be protected. In agreeing 
to convene a proceeding for reconsideration of the final rule, EPA 
agreed to provide the public with an opportunity to comment on other 
issues that may benefit from additional comment and response. By 
finalizing these provisions immediately, EPA would not be allowing the 
public an additional opportunity to comment on them. Additionally, 
Sec.  68.93(b) requires coordination to include consulting with local 
emergency response officials to establish appropriate schedules and 
plans for field and tabletop exercises required under Sec.  68.96(b). 
As Sec.  68.96(b) is a new section created in the final rule, EPA 
cannot finalize Sec.  68.93(b) as currently written without also 
finalizing Sec.  68.96(b).
    Regarding this commenter's recommendation that EPA allow the 
emergency response program provisions of Sec.  68.95, and particularly 
paragraph (c), to immediately go into effect, EPA notes that Sec.  
68.95(a)(4) also contains a reference to the new exercise requirements 
of Sec.  68.96, and therefore this provision cannot go into effect 
without Sec.  68.96. However, Sec.  68.95(c) is already contained in 
the existing rule. In the Risk Management Program Amendments final 
rule, EPA simply replaced the phrase ``local emergency planning 
committee'' with the acronym ``LEPC.'' therefore, this requirement will 
remain in effect with or without the Risk Management Program Amendments 
final rule becoming effective.

V. Additional Twenty Month Delay of Effectiveness

    EPA is delaying the effective date of the Risk Management Program 
Amendments final rule until February 19, 2019. Given the degree of 
complexity with the issues under review, and the likelihood of 
significant public interest in this reconsideration, we believe the 
delay we are adopting in this action is adequate and necessary for the 
reconsideration. While it is possible that we may require less time to 
complete the reconsideration, we believe delaying the effective date by 
a full 20 months is reasonable and prudent. This additional delay of 
the effective date enables EPA time to evaluate the objections raised 
by the various petitions for reconsideration of the Risk Management 
Program Amendments, provides a sufficient opportunity for public 
comment on the reconsideration in accordance with the requirements of 
CAA section 307(d), gives us an opportunity to evaluate and respond to 
such comments, and take any possible regulatory actions, which could 
include proposing and finalizing a rule to revise or rescind the Risk 
Management Program Amendments, as appropriate. During the 
reconsideration, EPA may also consider other issues, beyond those 
raised by petitioners, that may benefit from additional comment, and 
take further regulatory action.
    The EPA recognizes that compliance dates for some provisions in the 
Risk Management Program Amendments coincided with the rule's effective 
date, while compliance dates for other provisions would occur in later 
years, i.e., 2018, 2021, or 2022, depending on the provision. 
Compliance with all of the rule provisions is not required as long as 
the rule does not become effective. The EPA did not propose and is not 
taking any action on any compliance dates at this time, as EPA plans to 
propose amendments to the compliance dates as necessary when 
considering future regulatory action.
    Section 553(d) of the APA, 5 U.S.C. Chapter 5, generally provides 
that rules may not take effect earlier than 30 days after they are 
published in the Federal Register. EPA is issuing this final rule under 
Sec.  307(d)(1) of the CAA, which states: ``The provisions of section 
553 through 557 * * * of Title 5 shall not, except as expressly 
provided in this section, apply to actions to which this subsection 
applies.'' Thus, section 553(d) of the APA does not apply to this rule. 
EPA is nevertheless acting consistently with the policies underlying 
APA section 553(d) in making this rule effective on June 14, 2017. APA 
section 553(d) provides an exception when the agency finds good cause 
exists for a period less than 30 days before effectiveness. We find 
good cause exists to make this rule effective upon publication because 
a delay of effectiveness can only be put in place prior to a rule 
becoming effective. Waiting for 30 days for this rule to establish the 
new effective date of February 19, 2019 at this time would cause the 
Risk Management Amendments to become temporarily effective on June 19, 
2017 (existing effective date). Avoiding this situation alleviates any 
potential confusion and implementation difficulties that could arise 
were the Risk Management Program Amendments to go into effect for a 30-
day period and then be stayed during reconsideration or modified as a 
result of the reconsideration process.
    The effective date of the Risk Management Program Amendments, 
published in the Federal Register on January 13, 2017 (82 FR 4594), is 
hereby delayed to February 19, 2019.

VI. Statutory and Executive Orders

    Additional information about these statutes and Executive Orders 
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is a significant regulatory action that was submitted 
to the Office of Management and Budget (OMB) for review. Any changes 
made in response to OMB recommendations have been documented in the 
docket.

B. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under 
the PRA. This final rule would only delay the effective date of the 
Risk Management Program Amendments finalized on January 13, 2017 (see 
82 FR

[[Page 27143]]

4594) and does not contain any information collection activities.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. In 
making this determination, the impact of concern is any significant 
adverse economic impact on small entities. An agency may certify that a 
rule will not have a significant economic impact on a substantial 
number of small entities if the rule relieves regulatory burden, has no 
net burden or otherwise has a positive economic effect on the small 
entities subject to the rule. This final rule would not impose a 
regulatory burden for small entities because it only delays the 
effective date of the Risk Management Program Amendments finalized on 
January 13, 2017 (see 82 FR 4594). We have therefore concluded that 
this action will have no net regulatory burden for all directly 
regulated small entities.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. The action imposes no enforceable duty on any state, 
local or tribal governments or the private sector.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications as specified in 
Executive Order 13175. This final rule would only delay the effective 
date of the Risk Management Program Amendments finalized on January 13, 
2017 (see 82 FR 4594) and does not impose new regulatory requirements. 
Thus, Executive Order 13175 does not apply to this action.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that the EPA has reason to believe may disproportionately affect 
children, per the definition of ``covered regulatory action'' in 
section 2-202 of the Executive Order. This action is not subject to 
Executive Order 13045 because it does not concern an environmental 
health risk or safety risk.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution or Use

    This action is not a ``significant energy action'' because it is 
not likely to have a significant adverse effect on the supply, 
distribution or use of energy. This final rule only delays the 
effective date of the Risk Management Program Amendments finalized on 
January 13, 2017 (see 82 FR 4594) and does not impose any regulatory 
requirements.

I. National Technology Transfer and Advancement Act (NTTAA)

    This action does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    The EPA believes that this action is not subject to Executive Order 
12898 (59 FR 7629, February 16, 1994) because it does not establish an 
environmental health or safety standard. This final rule only delays 
the effective date of the Risk Management Program Amendments finalized 
on January 13, 2017 (see 82 FR 4594) and does not impose any regulatory 
requirements.

K. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule 
report to each House of the Congress and to the Comptroller General of 
the United States. This action is not a ``major rule'' as defined by 5 
U.S.C. 804(2).
    Only one major rule provision of the Risk Management Program 
Amendments has a compliance date that will be extended by delaying the 
effective date to February 19, 2019. As a result, the costs for that 
provision are delayed and will not be incurred by the regulated 
community while the rule is not yet in effect. As discussed below, the 
costs for this delayed compliance date is small relative to the total 
costs of the Risk Management Program Amendments and thus, the rule 
further delaying the effective date is not a major rule.
    In the Risk Management Program Amendments, EPA finalized the 
following compliance dates:
     March 14, 2018--Require compliance with emergency response 
coordination activities within one year of an effective date of a final 
rule;
     Provide three years for the owner or operator of a non-
responding stationary source to develop an emergency response program 
in accordance with Sec.  68.95. No specific date was established in the 
final rule. Instead, the three-year timeframe begins when the owner or 
operator determines that the facility is subject to the emergency 
response program requirements of Sec.  68.95;
     March 15, 2021--Comply with new provisions (i.e., third-
party compliance audits, root cause analyses as part of incident 
investigations, STAA, emergency response exercises, and information 
availability provisions), unless otherwise stated, four years after the 
original effective date of the final rule; and
     March 14, 2022--Provide regulated sources one additional 
year (i.e., five years after the original effective date of the final 
rule) to correct or resubmit RMPs to reflect new and revised data 
elements.
    The compliance dates of March 15, 2021 and March 14, 2022 are not 
affected by this rule. Therefore, the costs for the majority of the 
rule provisions are not affected by this rule (i.e., third-party 
compliance audits, root cause analyses as part of incident 
investigations, STAA, emergency response exercises, and information 
availability provisions). We are also delaying costs associated with 
minor rule provisions that would have become immediately effective on 
June 19, 2017. However, we did not estimate any costs for these 
provisions. These provisions include:
     Sec.  68.48 Safety information--revised to change 
``Material Safety Data Sheets'' to ``Safety Data Sheets (SDS);''
     Sec.  68.50 Hazard review--revised to clarify that that 
the hazard review must include findings from incident investigations;
     Sec.  68.54 & 68.71 Training--revised to clarify that 
employee training requirements apply to supervisors responsible for 
directing process operations (under 68.54) and supervisors with process 
operational responsibilities (under 68.71);
     Sec.  68.60 & 68.81 Incident investigation--revised to 
require incident investigation reports to be completed within 12 months 
of the incident, unless the implementing agency approves, in writing, 
an extension of time;
     Sec.  68.65 Process safety information--revised to require 
that process safety information be kept up-to-date;

[[Page 27144]]

    [cir] Also, changed the note to paragraph (b): To replace 
``Material Safety Data Sheets'' with ``Safety Data Sheets (SDS);'' and
     Sec.  68.67 Process hazard analysis--revised to require 
that the PHA must now address the findings from all incident 
investigations required under Sec.  68.81, as well as any other 
potential failure scenarios.
    The only major rule provision that would be affected by this rule 
(because its March 14, 2018 compliance date is before the delayed 
effective date of this rule) is the emergency response coordination 
provision, which has an estimated annualized cost of $16 
M.22 23 Therefore, based on the costs of the provisions that 
would be affected by this action, EPA has concluded that this action is 
not a ``major rule'' as defined by 5 U.S.C. 804(2).
---------------------------------------------------------------------------

    \22\ See EPA, Regulatory Impact Analysis, Accidental Release 
Prevention Requirements: Risk Management Programs Under the Clean 
Air Act, Section 112(r)(7), December 16, 2016, pp 71, Docket ID No. 
EPA-HQ-OEM-2015-0725.
    \23\ The new compliance date for the emergency response 
coordination provision will be February 19, 2019, unless we propose 
and finalize a revised compliance date in conjunction with future 
revisions to the Risk Management Program Amendments.
---------------------------------------------------------------------------

List of Subjects in 40 CFR Part 68

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Chemicals, Hazardous substances, 
Intergovernmental relations, Reporting and recordkeeping requirements.

    Dated: June 9, 2017.
E. Scott Pruitt,
Administrator.
[FR Doc. 2017-12340 Filed 6-13-17; 8:45 am]
 BILLING CODE 6560-50-P


